DECISIONS THIS WEEK
March 27, 2016

Dear Friends,

This week we are featuring an analysis of State of Hawai'i and Elshikh v. Trump, the second of three temporary restraining orders brought against US President Trump’s travel ban. Although it will be a while before there is a final ruling on the constitutionality of the ban, this case offers a representative overview of the issues before the court(s), including those related to freedom of religion under the first amendment. In the coming weeks, we will analyze some of the seminal cases the courts are relying on to make their arguments.

Also this week, we have updated our analysis of R v. Vice Media Canada, Inc. to include summaries of 5 Factum Briefs submitted to the High Court of Ontario which is hearing the appeal. In R (Ingenious Media) v. Commissioners for Her Majesty’s Revenue and Customs, the UK Supreme Court narrowly defined the circumstances under which a tax official may disclose information and found a tax official in breach of confidentiality regulations for speaking to a journalist “off the record” about tax evasion schemes. The Case of Kedir Moahmmed Yusuf from Ethiopia represents a negative trend of government crackdowns on the media, where two journalists (among other defendants) were sentenced to prison for inciting extremist ideology and planning to overthrow the government based on their coverage of protests by Ethiopian Muslims.

As part of our series of Right to Information cases, Petitioner v. Procuraduria General de la Republica (Public Prosecutor), is a landmark ruling which held that that Mexico’s access to information law mandates disclosure of otherwise protected documents when they relate to grave violations of fundamental rights and crimes against humanity.

We hope you enjoy reading the summaries below as well as the full analyses!

For the Record

“Are courts re-inventing Internet regulation?” by Global Freedom of Expression Director Dr. Agnes Callamard, was just published in the International Review of Law, Computers & Technology. The article reviews the evolution and key dimensions of the jurisprudence around the world as it relates to Internet regulation and governance. It argues that while the judicial sector played a fairly marginal role as far as on-line issues were concerned in the first two decades of the Internet development, judicial rulings have now emerged as one of the main forces shaping on-line freedom of expression and information and the Internet governance. The publisher is giving away 50 FREE copies from the below URL:
http://www.tandfonline.com/doi/pdf/10.1080/13600869.2017.1304603?needAccess=true

In a lawsuit filed in federal court in Washington, lawyers with the Knight First Amendment Institute at Columbia University say they are particularly concerned about the Department of Homeland Security’s policies related to searches of devices belonging to attorneys, human rights advocates and journalists.

Critical Minds for Critical Times: Media’s role in advancing peaceful, just and inclusive societies. In Celebration of World Press Freedom Day 2017, UNESCO has jointly organized this international academic conference May 1-4, in Jakarta, Indonesia.

Available online now is The European AV Observatory's new (3rd) edition of the e-book, Freedom of Expression, the Media and Journalists: Case-Law of the European Court of Human Rights. Get it here for FREE!

Facebook and Instagram have banned developers from using their data for surveillance with a new privacy policy that civil rights activists have long sought to curb spying by law enforcement.

North America

United States

State of Hawai'i and Elshikh v. Trump
Decision Date: March 15, 2017
The District Court for Hawaii imposed a nationwide temporary restraining order (TRO) on the second Executive Order issued by U.S. President Donald J. Trump placing restrictions on the entry of foreign nationals. The initial Executive Order, issued by the President during his first week in office, placed broad restrictions on individuals traveling to the U.S. from seven Muslim-majority countries. A Washington court placed a TRO on the Order, which was upheld at the Ninth Circuit, on the grounds that the Order was likely unconstitutional and was likely to cause irreparable harm if implemented. President Trump then issued a second Executive Order which, among other things, removed some of the problematic language in the first Order. The Plaintiff State of Hawaii claimed that the Executive Order inflicts constitutional and statutory injuries on its residents, employers and educational institutions while Plaintiff Dr. Elshikh alleged injuries on behalf of himself, members of his family and members of his Mosque.

The Court found that both the State of Hawaii and Dr. Elshikh had standing to hear the case, and that the Executive Order was likely to be found unconstitutional under the Establishment Clause because the Order did not have a religiously neutral purpose. The Court reasoned that because violation of a party's constitutional rights constitutes irreparable harm and is always contrary to the public interest, a TRO to block the Order from taking effect until courts could decide whether to issue a preliminary injunction, and ultimately, decide on the merits of the constitutional claims, was justified.

Canada

R v. Vice Media Canada, Inc.
Decision Date: March 29, 2016
The Ontario Superior Court of Justice upheld a production order against Vice Media and one of its reporters to produce communications with a suspect in a terrorism investigation, finding that the interests of law enforcement outweighed the interests of the media. Further, the Court unsealed part of the production order but ordered a publication ban pending the outcome of the criminal proceedings against the suspect to protect his right to a fair trial. In upholding the validity of the production order the Court reasoned that production of the material requested would lead to evidence pertaining to potential criminal activities not obtainable by other means.

This case is currently on appeal to the High Court in Ontario and we have updated our analysis to include summaries of 5 Factum Briefs received by Columbia Global Freedom of Expression. Vice is arguing that the lower court erred in failing to place sufficient weight on the role of the media, failed to take into account the probative value of the evidence, and erred in upholding a sealing order and publication ban. Several media and journalist organizations in Canada intervened arguing that issuing justices must always take into account the chilling effect their ruling may have on the media and "examine the purpose and value of the production order being sought." Additionally, they argue that on appeal production orders should be reviewed de novo, assessed as if for the first time. The judgment is pending.

Europe and Central Asia

United Kingdom

R (Ingenious Media) v. Commissioners for Her Majesty’s Revenue and Customs
Decision Date: October 19, 2016
The UK Supreme Court found that a senior tax official had not been permitted to disclose confidential information in an "off the record" interview with The Times newspaper. The case arose from an interview given by a senior official from Her Majesty’s Revenue and Customs (HMRC) to a journalist about an investment firm's schemes to avoid taxes by taking advantage of certain tax reliefs. HMRC argued that the disclosure was justified under a statutory provision that permitted disclosures where they were "made for the purposes of a function of [HMRC]". HMRC alleged that the disclosure was made for the purpose of fostering good relations with the financial press and to publicize their views on tax avoidance schemes. The UK Supreme Court held that the relevant statutory provision should be read narrowly so as to only permit disclosure that was reasonably necessary for HMRC to fulfill its primary function of revenue collection and management. In this case, the UK Supreme Court held that the disclosure was unjustified and that there had been a breach of confidentiality.

Africa

Ethiopia

The Case of Kedir Moahmmed Yusuf
Decision Date: January 3, 2017
On January 3 2017, the Federal High Court of Ethiopia sentenced Radio Bilal journalists Khalid Mohammed Ahmed and Darsema Sori, along with 17 other defendants, to prison following their conviction in December for inciting extremist ideology and planning to overthrow the government. The journalists were imprisoned in connection with their coverage of protests by Ethiopian Muslims against rising government interference in their religious affairs. The other defendants were charged with organizing unlawful demonstrations and inciting protests among Muslims. They were convicted under the country’s 2009 Anti-Terrorism Proclamation and the Federal Penal Code. The official court documents have not been made public but there have been alleged irregularities with the case which coincide with a government crackdown on journalists over recent months.

Latin-America

Mexico

Petitioner v. Procuraduria General de la Republica (Public Prosecutor)
Decision Date: May 26, 2010
The Federal Institute for Access to Information and Data Protection (IFAI) held that prosecutors must release a 2002 preliminary investigation related to the killing of students and other peaceful protesters by military and paramilitary actors because Mexico’s access to information law mandates disclosure of otherwise protected documents when they relate to grave violations of fundamental rights. The IFAI said that there was no reason why preliminary investigations of criminal matters should not be included within the exception to non-disclosure of 'reserved documents' which applied in cases of “grave violations of fundamental rights or crimes against humanity”. On the contrary, IFAI reasoned that the exception suggested exactly the opposite in light of principles of transparency and the overriding public interest in disclosing human rights violations. Therefore, the preliminary investigations were not protected by secrecy.

This case analysis was contributed by Right2Info.org.

Other Noteworthy News

Monitoring Human Rights and Freedom of Expression

The Electronic Frontier Foundation (EFF) urged a San Francisco appeals court to find that the FBI violates the First Amendment when it unilaterally gags recipients of national security letters (NSLs), and that the law should therefore be found unconstitutional.
ARTICLE 19 submitted an expert opinion in Özgür Gündem solidarity campaign case calling for the court to consider international human rights in its judgment, and for the defendants to be acquitted. ARTICLE 19 further called for charges against all those who participated in the Özgür Gündem solidarity campaign to be dropped and for sentences to be overturned.
Colorado House approves bill to eliminate “free speech zone” restrictions on Colorado campuses. The Colorado House of Representatives voted to ban so-called “free speech zones” on public college campuses that have been used to confine public demonstrations to designated areas in order to open students up to opposing views.

New Initiatives

Facebook is rolling out its third-party fact-checking tool in the fight against fake news, alerting users to “disputed content”.

Professional Development: Recent IRIS Publications

Columbia Global Freedom of Expression seeks to advance understanding of the international and national norms and institutions that best protect the free flow of information and expression in an inter-connected global community with major common challenges to address.

For comments or inquiries please email us at globalfreespeech@columbia.edu

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